NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE CASTILLA-FLORIAN, No. 20-72720
Petitioner, Agency No. A205-024-703
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 21, 2021**
San Francisco, California
Before: BADE and BUMATAY, Circuit Judges, and SESSIONS,*** District
Judge.
Jose Castilla-Florian (“Castilla-Florian”), a native and citizen of Peru who
operated an independent newspaper in that country, petitions for review of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
decision of the Board of Immigration Appeals (“BIA”) affirming an immigration
judge’s (“IJ”) denial of his applications for withholding of removal and relief
under the Convention Against Torture (“CAT”). We have jurisdiction under 8
U.S.C. § 1252 and deny the petition.
We review the agency’s factual findings for substantial evidence, Brezilien
v. Holder, 569 F.3d 403, 411 (9th Cir. 2009), and apply the standards governing
adverse credibility determinations created by the REAL ID Act. See Alam v.
Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc). Therefore, we cannot
reverse the agency’s factual findings unless the evidence not only supports a
contrary conclusion, “but compels it.” Wang v. Sessions, 861 F.3d 1003, 1007 (9th
Cir. 2017).
1. Castilla-Florian argues the BIA erred in upholding the IJ’s
determination that his testimony was not credible.
The IJ, and in turn the BIA, properly based the adverse credibility
determination on the totality of the circumstances, including several
inconsistencies in Castilla-Florian’s testimony, which is permissible under the
REAL ID Act. Alam, 11 F.4th at 1137; Shrestha v. Holder, 590 F.3d 1034, 1039–
40 (9th Cir. 2010). Given the number and significance of the inconsistencies in his
testimony, it was reasonable for the agency to conclude that Castilla-Florian lacked
credibility. See, e.g., Mukulumbutu v. Barr, 977 F.3d 924, 926–27 (9th Cir. 2020);
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Silva-Pereira v. Lynch, 827 F.3d 1176, 1185–86 (9th Cir. 2016); Kaur v. Gonzales,
418 F.3d 1061, 1067 (9th Cir. 2005). The aggregate effect of Castilla-Florian’s
inconsistencies was the presentation of a stronger claim for relief in his oral
testimony than in his written materials, which supports an adverse credibility
determination. See Zamanov v. Holder, 649 F.3d 969, 973–74 (9th Cir. 2011).
Further, Castilla-Florian was given opportunities to explain the inconsistencies and
his explanations were not persuasive, which also weighs in favor of the adverse
credibility finding. Mukulumbutu, 977 F.3d at 926–27. The record does not
compel the conclusion that Castilla-Florian’s testimony was credible.
2. Castilla-Florian argues the agency erred in rejecting his withholding
of removal claim. Because of the adverse credibility determination, the agency
was left to weigh Castilla-Florian’s eligibility for withholding of removal based on
the remaining evidence in the record. See, e.g., Huang v. Holder, 744 F.3d 1149,
1156 (9th Cir. 2014); Shrestha, 590 F.3d at 1048.
The BIA reasonably concluded that Castilla-Florian’s independent evidence
did not demonstrate that the harm he suffered was “because of” his “race, religion,
nationality, membership in a particular social group, or political opinion.”
Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017); Shrestha, 590 F.3d at
1039. The BIA also reasonably construed the country conditions evidence in
deciding that this evidence—which indicates there are ongoing issues with
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freedom of the press and the treatment of journalists in Peru—did not, on its own,
establish a sufficient likelihood of persecution. Cf. Sowe v. Mukasey, 538 F.3d
1281, 1286 (9th Cir. 2008). The record, denuded of Castilla-Florian’s discredited
testimony, does not compel the conclusion that Castilla-Florian met his burden to
show he was entitled to withholding of removal.
3. Castilla-Florian also argues that the BIA erred in affirming the IJ’s
denial of CAT relief. As with his withholding claim, Castilla-Florian’s CAT claim
could rely only on the independent documentary evidence in light of the adverse
credibility determination. See Wang, 861 F.3d at 1009.
The BIA reasonably concluded that Castilla-Florian’s documentary
evidence, standing alone, was insufficient to meet his burden to show a likelihood
of torture if he were returned to Peru. Castilla-Florian does not argue that this
evidence would be sufficient for CAT relief; instead, he contends that this
evidence, alongside his testimony, suffices. Castilla-Florian therefore effectively
concedes that in the absence of his testimony he cannot demonstrate CAT
entitlement. Further, the agency reasonably determined that the independent
evidence did not demonstrate a likelihood of torture because the past harm
Castilla-Florian suffered would not meet the CAT’s definition of torture, his
argument that torture would more likely than not occur in the future was
speculative, and Castilla-Florian failed to demonstrate an individualized risk of
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torture. Cf. Mukulumbutu, 977 F.3d at 928; Vitug v. Holder, 723 F.3d 1056, 1066
(9th Cir. 2013); Zheng v. Holder, 644 F.3d 829, 835–36 (9th Cir. 2011).
PETITION DENIED.
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